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The Reporters Committee for Freedom of the Press has filed written testimony in conjunction with a hearing by the Massachusetts Joint Committee on the Judiciary on a bill that would criminalize news media who identify children involved in criminal proceedings, no matter the source. The Reporters Committee, joined by several New England media groups, argues that while “well intentioned” the bill amounts to an unconstitutional prior restraint on news reporting.

The bill, S.785, requires that all documents with information about children involved in criminal proceedings would automatically be sealed, without court order or explanation, and that anyone who reports that information, whether derived from court documents or outside sources, would face criminal contempt charges.

“The U.S. Supreme Court has made clear that the justice system in this country is presumptively administered in the open,” the Reporters Committee testimony says. “Parties attempting to block public access must justify the closing or sealing” and trial courts must make their determinations on a case-by-case basis. “Because S.785 lacks this procedural requirement that safeguards the public’s First Amendment right of access, the measure is of questionable constitutionality.”

Moreover, the Reporters Committee argues, by criminalizing the reporting of such information even when independently obtained, the bill is an unconstitutional prior restraint on publication, which the U.S. Supreme Court has called “the most serious and the least tolerable infringement on First Amendment rights.”

“No one would argue that a judge may determine that there are times when withholding names and other information about children who may be victims or witnesses in court proceedings may be necessary,” said Reporters Committee Executive Director Lucy A. Dalglish. “But our overriding concern here is that this bill goes too far. It not only contravenes decades of court doctrine that requires any request to seal information be considered individually and gives all interested parties an opportunity to argue against the motion if necessary, but it also criminalizes independent reporting of truthful information.

“We strongly urge Massachusetts legislators to suspend any further action on the bill,” Dalglish said.

The Reporters Committee’s written testimony was joined by the Digital Media Law Project, hosted by Harvard University’s Berkman Center for Internet & Society; Dow Jones Local Media Group Inc., publisher of the Cape Cod Times and The New Bedford Standard-Times; and the New England First Amendment Coalition. A copy of the testimony is posted online.

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